Debell v. Foxworthy's Heirs
| Decision Date | 27 January 1848 |
| Citation | 48 Ky. 228 |
| Parties | Debell v. Foxworthy's Heirs. |
| Court | Kentucky Court of Appeals |
Purchaser pendente lite. Bills of review.
APPEAL FROM THE FLEMING CIRCUIT.
McClung and Taylor for appellant.
Hord for appellees.
OPINION
Case stated in the original bill and decree therein.
WILLIAM MARSHALL, of Virginia, having executed his bond to James Edmonson, for 5,000 acres of land, containing a stipulation, in the event any of the land was lost by a better title, to refund at the rate of twenty shillings an acre; Edmonson brought a suit in equity on the bond, and in 1817 obtained a decree against the heirs of William Marshall, he having died, for the conveyance of 5,559 acres. The decree required, and the commissioner's deed executed in pursuance thereof, covenanted for the return of twenty shillings an acre, for the whole quantity conveyed, in the event of its loss by a better title.
In 1826, Marshall's heirs filed a bill of review to correct the errors apparent in the record, in decreeing the conveyance of 5,559 acres, instead of 5,000, the quantity demanded by the bond, and requiring a covenant of warranty co-extensive with the quantity decreed to be conveyed. Edmonson tendered an answer to this bill, alleging that the value of the land had been misrepresented by Marshall at the time he sold to him, and that to remove his objections arising out of this misrepresentation, by an arrangement made between them, more land was, by consent, decreed to be conveyed, than had been purchased by the original contract. The answer was rejected, and a decree rendered annulling so much of the first decree as directed a conveyance of the excess over five thousand acres, and ordering a reconveyance of such excess to Marshall's heirs. This last decree was affirmed by this Court: (6 J. J. Marshall, 450.)
Bill of review by Marshall's heirs and decree therein.
In the opinion then given, it was decided that in a bill of review to correct errors apparent on the face of the record, only questions of law arising on the record, were presented; and that no new extraneous matter existing at the time of the decree, was admissible. That if any thing had occurred since the decree was pronounced which would bar a review, such as a release, or other matters of a similar character, they should be presented and relied upon by plea.
After the first decree was rendered in favor of Edmonson, and before the filing of the bill of review to correct that decree by Marshall's heirs, Edmonson sold and conveyed to William Foxworthy, one hundred acres of the land decreed to him. This one hundred acres was included in the excess decreed on the bill of review to be re-conveyed to Marshall's heirs.
Marshall's heirs afterwards brought an action of ejectment against Foxworthy and the other tenants in possession of the 559 acres, the excess over the 5,000 acres, and recovered a judgment against them for the land. The persons in possession brought the case to this Court, and it was here decided that Foxworthy's title was derivative, and that he acquired no other or better title than Edmonson had when he sold to him. That he took it subject to all the contingencies to which it was subject in the hands of Edmonson. The title of the latter was defeasible, and Foxworthy was presumed to have known it, and being a purchaser pendente lite, was as much bound as Edmonson by the proceedings under the bill of review. The judgment of the Court below was, consequently, affirmed: (4 Dana, 95.)
Ejectment by Marshall's heirs and the decree on them.
Foxworthy having died, this suit in equity was brought by his heirs. They attempt to show an equity in Edmonson, to the land sold and conveyed by him to their ancestor, as part of the 5,000 acres to which he was entitled from Marshall. They insist that Edmonson had a right in equity, to have had this land assigned to him, as part of the 5,000 acres purchased by him from Marshall; and as their ancestor was a purchaser from Edmonson before the bill of review was filed by Marshall's heirs, and was not made a party to it, that he was not bound by the proceedings under it, and that they have a right still to assert this equity. Their right to do so in this suit, is the question we have to determine.
The case now before the Court.
It has been already decided in the case referred to in 4 Dana, 95, that Foxworthy was a purchaser pendente lite, and bound by the decree subsequently rendered on the bill of review.
It is, however, now contended, that a final decree having been rendered in the original suit, at the time he made his purchase, and the bill of review having been subsequently brought, that there was no suit pending at the time he acquired his title, and that therefore, he cannot, with any propriety, be regarded as a purchaser pendente lite.
A purchase made during an abatement of the suit, if afterwards revived and prosecuted to a decree without culpable negligence, or after a final disposition of the cause in the Court below, and before a writ of error is prosecuted, is subject to the final disposition of the cuuse, and the purchaser is considered as having purchased pendente lite: Watson vs Wilson, (2 Dana, 406.) We can see nothing more incongruous, in regarding Foxworthy as a purchaser pendente lite, than there is in so regarding the purchaser in the cases just mentioned. But it is immaterial whether he be treated as a purchaser pendente lite, or as a privy to the decree; the consequences are the same, and the only difference is in name.
A purchase after a final decree, and before a writ of error prosecuted, purchases subject to the final decree, which may be rendered in the cause. (2 Dana, 406.)
It is farther contended on the part of Foxworthy's heirs, that their ancestor should have been made a party by Marshall's heirs, to the bill of review, and this not having been done, they are not precluded by the decree in that case, from asserting the equity which they now set up. In support of this principle, reference is made to Mitford's Pleading, page 90, and to Story's Equity Pleading, sec. 420, where it is said, in treating upon bills of review, that a " supplemental bill may likewise be added, if any event has happened which requires it, and particularly if any person not a party to the original suit, becomes interested in the subject, he must be made a party to the bill of review by way of supplement."
The principle thus asserted is correct when properly understood and with certain qualifications.
The voluntary alienation of property, pending a suit, by any party to it, does not affect the rights of the other party, and the purchaser need not be brought before the Court And it will make no difference whether the purchaser be the claimant of a legal or an equitable interest, or whether he be the assignee of the complainants or defendants:
The voluntary alienation of property during the pendency of a suit for it, does not affect the rights of the parties to the suit, whether it be an effort to transfer an equity or legal estate. (Story's Eq., Sec. 156-351; Mitford's Equity Pleading, 73.)
The same rule prevails where a vendee files a bill for a specific performance of a contract for the purchase of land against the vendor, and pending the suit, sells to one or more sub-purchasers. In such a case, the subpurchasers need not be made parties, but they will be bound by the decree in the suit: (Same, sec. 351, a. )
The same rule prevails where suit is brought and pending by vendee vs vendor and there is a sale.
But there is a distinction between cases of voluntary alienation, and cases of involuntary alienation, or those made by operation of law. In the latter case, the alienee must be made a party; in the former, he may or not, at the election of the complainant: (Same, sec. 342; ) Sedgwick vs Cleaveland, (7 Paige, 290.)
But if the title pass by operation of law or...
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